President Obama will reportedly announce the appointment of Solicitor General Elena Kagan to the Supreme Court today. I don’t know much about Kagan, but the little I do know raises a question in my mind about what kind of justice she will be.

As Dean of Harvard Law School, Kagan had to deal with the issue of compliance with the Solomon Amendment. Under the Solomon Amendment, universities receiving federal funding are required to allow the armed services to recruit on campus like other employers. It is a law that shouldn’t be necessary.

Harvard Law School was one of many prominent law schools that chose to violate the Solomon Amendment, citing the military’s don’t ask/don’t tell policy. The don’t ask/don’t tell policy is not just a whim of the armed forces. It is also the law of the land, but don’t tell law school deans about it. They have to worry about matters closer to home, like their own schools’ so-called nondiscrimination policies against hosting recruiters for employers that don’t toe the line on homosexual rights.

When the Department of Defense sent Harvard a notice that it intended to enforce the Solomon Amendment, Kagan announced that she would adhere to what I call the Yale Doctrine, in honor of the statement made by then-Yale Law Dean Anthony Kronman at the time:

We would never put at risk the overwhelmingly large financial interests of the University in federal funding. We have a point of principle to defend, but we will not defend this—at the expense of programs vital to the University and the world at large.

Dean Kronman paid a backhanded tribute to the “money talks” impetus behind the Solomon Amendment. Thus the Yale Doctrine: We take your money for the good of the world.

But neither Yale nor Harvard let it go at that. They both supported FAIR v Rumsfeld, the lawsuit opposing the Solomon Amendment.

Yale and others argued that the Solomon Amendment was unconstitutional. I thought that the legal merits of the FAIR lawsuit rivaled those of obesity lawsuits brought by overweight consumers against fast food outlets. A divided panel of the Third Circuit Court of Appeals held in favor of the plaintiffs, however, finding it likely that the Solomon Amendment unconstitutionally infringed the law school’s First Amendment rights.

When the Supreme Court accepted the Department of Defense’s appeal from the Third Circuit decision, Kagan got on board. She was one of 40 Harvard Law School professors who signed a friend-of-the-court brief written by Walter Dellinger supporting the FAIR plaintiffs.

In the brief Dellinger argued that the Solomon Amendment applied only to schools that specifically prohibited military access on campus, not to schools’ whose policies simply had the (allegedly) incidental effect of doing so. Dellinger distinguished the law schools’ contemporary anti-discrimination policies from Vietnam-era academic anti-military policies.

Dellinger’s argument based on the language of the Solomon Amendment was, to say the least, strained, and the Supreme Court gave it the back of its hand in the Court’s 9-0 opinion upholding the Solomon Amendment. Even Justice Stevens rejected it.

Here we have Kagan herself, as Dean of the Harvard Law School, signing off on a brief making an argument so far out that not a single member of the Supreme Court found it worthy of adherence. This would seem to provide some evidence for the proposition that Kagan’s views lie somewhere outside the mainstream of Supreme Court jurisprudence.

Perhaps the institutional imperatives to which she gave voice as dean of the Harvard Law School overrode her common sense. For other reasons, Kagan has noted she didn’t write the brief; she merely signed it.

Kagan’s side decisively lost the FAIR case in the Supreme Court. I wrote while the case was pending in the Supreme Court that some lawsuits deserve a fate worse than failure. While decent military recruiters suffered the rudeness of their purported betters at Yale Law School and elsewhere in silence, the armed services of the United States were (and are) actively defending the freedom of those schools from peril. The rank ingratitude of those who should know better is a disgrace that deserves to be widely recognized as such.

In the "Acknowledgments" section of her work, she specifically thanked her brother Marc, whose involvement in radical causes led me to explore the history of American radicalism in the hope of clarifying my own political ideas. In the body of the thesis, Kagan wrote:

"In our own times, a coherent socialist movement is nowhere to be found in the United States. Americans are more likely to speak of a golden past than of a golden future, of capitalisms glories than of socialisms greatness. Conformity overrides dissent; the desire to conserve has overwhelmed the urge to alter. Such a state of affairs cries out for explanation. Why, in a society by no means perfect, has a radical party never attained the status of a major political force? Why, in particular, did the socialist movement never become an alternative to the nations established parties?...

"Through its own internal feuding, then, the SP [Socialist Party] exhausted itself forever and further reduced labor radicalism in New York to the position of marginality and insignificance from which it has never recovered. The story is a sad but also a chastening one for those who, more than half a century after socialisms decline, still wish to change America. Radicals have often succumbed to the devastating bane of sectarianism; it is easier, after all, to fight ones fellows than it is to battle an entrenched and powerful foe. Yet if the history of Local New York shows anything, it is that American radicals cannot afford to become their own worst enemies. In unity lies their only hope."

Excerpt: > In April, the White House reacted with fury when Ben Domenech, writing in a blog post for CBS News, declared that Kagan would be the "first openly gay justice" on the U.S. Supreme Court. Under increasing pressure from the Obama administration, CBS eventually pulled the post and Domenech apologized for "a Harvard rumor" - but not before posting an addendum stating: "I have to correct my text here to say that Kagan is apparently still closeted - odd, because her female partner is rather well known in Harvard circles."

12
posted on 05/10/2010 6:49:29 AM PDT
by preacher
(A government which robs from Peter to pay Paul will always have the support of Paul.)

BORK HER BOYS! Sorry Ms. Kagan, you are not qualified, and you are a marxist pal. SO, no sorry. Tea Party Conservatives will NOT support your nomination, and those elected officials in the senate in the GOP had better HEAR THIS: N O on Kagan. Any questions GOP? Any at all? Good.

Vote no, thats the will of your constituents.

15
posted on 05/10/2010 6:51:07 AM PDT
by Danae
(Don't like the Constitution, try living in a country with out one.)

Since she was a homosexual activist in her position at Harvard, I suspect this is yet another nomination bone to the gay lobby. The “Progressive” media at the local level has been making much of Obmama appointing openly homosexual people to various high profile federal jobs. Suspect this is more of the same.

16
posted on 05/10/2010 6:52:48 AM PDT
by MNJohnnie
(The problem with Socialism is eventually you run our of other peoples money. Lady Thatcher)

You know, I've been thinking about this, and I wonder why HolyO is making such a racist choice with this...this...person. Since there's no representative of the African-American race on the Supreme Court (according to LSDers-liberals/leftists/statists/democrats-) he's totally disenfranchising a huge portion of the LSD population. Not to mention denying some other deserving black man the opportunities HolyO himself enjoys being the first African-American in the White House! Tsk, tsk!

Why aren't liberals all over him for being a RACIST and denying members of his own RACE a chance to serve on SCOTUS?!?! /sarc (sort of)

How can a sitting judge be a judge when she/he is not a judge? Our country is going to sink into the wretch of history if this is allowed to stand/sit. We must fight this and also my kid laughed at the man with the ear rings and pearls. I was ashamed that is who he picked. What a loser of the highest degree!

I am very fed up with these sick sex people getting pushed in my face as leaders.

It's all about undermining American culture and the US military. It has been the goal of the commie left for decades to destroy us from within.

See # 16 and 24-26.

Congressional Record--Appendix, pp. A34-A35 January 10, 1963

Current Communist Goals [1963]:

1. U.S. acceptance of coexistence as the only alternative to atomic war.

2. U.S. willingness to capitulate in preference to engaging in atomic war.

3. Develop the illusion that total disarmament [by] the United States would be a demonstration of moral strength.

4. Permit free trade between all nations regardless of Communist affiliation and regardless of whether or not items could be used for war.

5. Extension of long-term loans to Russia and Soviet satellites.

6. Provide American aid to all nations regardless of Communist domination.

7. Grant recognition of Red China. Admission of Red China to the U.N.

8. Set up East and West Germany as separate states in spite of Khrushchev's promise in 1955 to settle the German question by free elections under supervision of the U.N.

9. Prolong the conferences to ban atomic tests because the United States has agreed to suspend tests as long as negotiations are in progress.

10. Allow all Soviet satellites individual representation in the U.N.

11. Promote the U.N. as the only hope for mankind. If its charter is rewritten, demand that it be set up as a one-world government with its own independent armed forces. (Some Communist leaders believe the world can be taken over as easily by the U.N. as by Moscow. Sometimes these two centers compete with each other as they are now doing in the Congo.)

12. Resist any attempt to outlaw the Communist Party.

13. Do away with all loyalty oaths.

14. Continue giving Russia access to the U.S. Patent Office.

15. Capture one or both of the political parties in the United States.

16. Use technical decisions of the courts to weaken basic American institutions by claiming their activities violate civil rights.

17. Get control of the schools. Use them as transmission belts for socialism and current Communist propaganda. Soften the curriculum. Get control of teachers' associations. Put the party line in textbooks.

18. Gain control of all student newspapers.

19. Use student riots to foment public protests against programs or organizations which are under Communist attack.

20. Infiltrate the press. Get control of book-review assignments, editorial writing, policymaking positions.

21. Gain control of key positions in radio, TV, and motion pictures.

22. Continue discrediting American culture by degrading all forms of artistic expression. An American Communist cell was told to "eliminate all good sculpture from parks and buildings, substitute shapeless, awkward and meaningless forms."

27. Infiltrate the churches and replace revealed religion with "social" religion. Discredit the Bible and emphasize the need for intellectual maturity which does not need a "religious crutch."

28. Eliminate prayer or any phase of religious expression in the schools on the ground that it violates the principle of "separation of church and state."

29. Discredit the American Constitution by calling it inadequate, old-fashioned, out of step with modern needs, a hindrance to cooperation between nations on a worldwide basis.

30. Discredit the American Founding Fathers. Present them as selfish aristocrats who had no concern for the "common man."

31. Belittle all forms of American culture and discourage the teaching of American history on the ground that it was only a minor part of the "big picture." Give more emphasis to Russian history since the Communists took over.

32. Support any socialist movement to give centralized control over any part of the culture--education, social agencies, welfare programs, mental health clinics, etc.

33. Eliminate all laws or procedures which interfere with the operation of the Communist apparatus.

34. Eliminate the House Committee on Un-American Activities.

35. Discredit and eventually dismantle the FBI.

36. Infiltrate and gain control of more unions.

37. Infiltrate and gain control of big business.

38. Transfer some of the powers of arrest from the police to social agencies. Treat all behavioral problems as psychiatric disorders which no one but psychiatrists can understand [or treat].

39. Dominate the psychiatric profession and use mental health laws as a means of gaining coercive control over those who oppose Communist goals.

40. Discredit the family as an institution. Encourage promiscuity and easy divorce.

41. Emphasize the need to raise children away from the negative influence of parents. Attribute prejudices, mental blocks and retarding of children to suppressive influence of parents.

42. Create the impression that violence and insurrection are legitimate aspects of the American tradition; that students and special-interest groups should rise up and use ["]united force["] to solve economic, political or social problems.

43. Overthrow all colonial governments before native populations are ready for self-government.

44. Internationalize the Panama Canal.

45. Repeal the Connally reservation so the United States cannot prevent the World Court from seizing jurisdiction [over domestic problems. Give the World Court jurisdiction] over nations and individuals alike.

And remember Obama's recent call for African-Americans, Latinos, and women to reform the coalition that got him elected in 2008. A lesbian Jew has some political reasonance within the Dem constituency.

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